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#420 Civil lawsuits related to criminal matters

mp3 #420 Victims Civil Lawsuits Against Criminals (mp3 file)

In California, crime victims can often receive monetary compensation for their out-of-pocket expenses that resulted from the crime. The State's Victims of Crime program can pay victims of violent crime for certain expenses not covered by other means. In certain other cases, victims can receive restitution, which is a money judgment imposed on the defendant during the sentencing phase of most felony and some misdemeanor trials.

However, these types of payments may not cover all the victim's losses (for example, most property losses are not covered by the victims of crime program), nor do they cover the pain and suffering a victim endures. In most cases such losses can only be recovered through a successful civil suit against a perpetrator.

A civil suit is different from a criminal trial in many respects. For example, in a criminal trial, the prosecution represents all of the people of the state of California, not just the victim. As a result, the victim sometimes is not satisfied with the outcome. In a civil trial, the victim is represented by a private attorney whose only concern is the victim's best interests.

Another important difference is the amount of evidence needed to win the trial. In a criminal trial, the prosecution must prove the charges are true "beyond a reasonable doubt." in contrast, a civil trial requires only that the victim's attorney prove that the charges more likely than not are true. This standard of proof is commonly called the "preponderance of evidence. "

A successful civil suit allows the victim to be paid for such things as property loss and pain and suffering. In addition, the civil judgment may also include punitive damages, which are fees imposed to discourage the defendant from committing wrongful acts in the future.

Victims are often unsure about whether to proceed with a civil suit.

First, what about attorney expense?

Victims may hesitate to bring a lawsuit because they think hiring an attorney is too expensive. In many cases, attorneys will accept cases on a contingent fee basis, which means the attorney takes a percentage of the recovery if she wins, but nothing if she loses. These percentages vary, and are negotiated between client and attorney.

Victims may have to pay certain additional costs involved in lawsuits. If the victim wins at trial, these costs will be reimbursed. The agreement between the attorney and victim should specify the nature of these costs. An attorney takes a risk when accepting a case on a contingency, and will carefully consider the prospects of recovery before agreeing to proceed. In some situations, either because there is unfavorable law or weak evidence, a victim may have difficulty finding an attorney. However, when an attorney is willing to accept a case, the contingent fee arrangement can substantially reduce the amount of money the victim must pay up front.

Next, what if the district attorney fails to prosecute or fails to obtain a conviction?

Occasionally, a victim will find that the district attorney's office has decided not to prosecute, or has failed to obtain a conviction. To many victims, this seems to mean that the defendant will go unpunished in any way for the wrongful act. That is not necessarily the case. Most criminal actions will create some form of civil liability that will allow the victim to bring the lawsuit. In fact, many criminal acts have identical names and elements to their civil counterparts. (these civil counterparts are known as "torts.") an example would be the crime of battery. A person who commits the crime of battery, also commits the tort of battery.

The failure of the district attorney to prosecute successfully will not necessarily prevent a successful civil lawsuit by the victim, because there are differences in evidence and burden of proof. In a criminal trial, the defendant has the right to use certain constitutional protections that may keep out certain evidence at his trial. When kept out, this evidence may result in an acquittal. However, that same evidence may be allowed at a civil trial, which may result in a verdict in favor of the victim. Also, different burdens of proof apply to criminal and civil trials. The preponderance of evidence requirement in a civil suit is much less than the "beyond a reasonable doubt" requirement in a criminal proceeding. Thus it is possible that the evidence available would not be enough to convict someone of a crime, but it would be enough to win a civil lawsuit.

Next, what are the chances of recovering from the defendant? One of the victim's most realistic concerns regarding civil lawsuits is getting money from the perpetrator. Many victims think it is useless to sue a perpetrator who has no assets. Victims may also find it difficult to hire an attorney if the hope for recovery is slim. However, even though a perpetrator appears penniless, he or she may have hidden assets that would support a judgment. It is possible that an attorney can find these hidden assets while preparing for trial. A perpetrator may have no assets now, but may acquire some in the future. Civil judgments in California are good for 10 years. Civil judgments can also be renewed in order to give the victim even longer to recover. An attorney may also be able to assist a victim in attaching a lien to certain property or freezing the assets in a bank account in order to satisfy a judgment. In addition, the perpetrator's wages can be garnished.

Next, what about the ordeal of another trial?

For many victims, the main concern in deciding whether to go ahead with the lawsuit, is the fear of having to relive the crime. The victim may have to testify during depositions before a trial, and again on the witness stand during the trial. The victim may be faced with another vigorous cross-examination by the defense attorney.

Next, how much time has gone by since the date of the crime?

In some cases a victim is unsure of his or her right to bring a civil suit, until after some time has passed. If the victim waits too long, the opportunity for civil recovery may be lost. It is important to discuss with an attorney the possibility of a civil lawsuit as soon as possible. In many cases, the victim may have as little as six months in which to start a civil lawsuit. However, the victim should not lose all hope, just because a lengthy period of time has gone by. Many limitation periods are longer than six months, and some limitations may even allow the victim to file years after the crime. In addition, there are factors and events which may temporarily stop the time limitation from running. These include, the victim's age at the time of the crime, whether the perpetrator is convicted of a felony, whether the perpetrator has spent time out of the state of California, and whether the victim was in military service at the time of the crime. It may also be possible to sue for occurrences that happened many years ago if the victim has only recently recalled that the events took place. To determine whether any of these situations apply, the victim should discuss the possibility with an attorney.

The decision of whether to bring a civil suit is a complex and difficult one. Since most defendants will be represented by a lawyer, it is in the victim's best interest to discuss the matter with an attorney. An attorney will be able to listen, review the evidence, and discuss the law that will decide the chances of success at trial. An attorney can also help discover hidden assets the perpetrator may have, and can help enforce the judgment. He or she can also assist the victim in weighing the advantages and disadvantages of civil litigation, and will be able to prepare the victim for trial. Many lawsuits drag out over months and years. Testing both the patience and endurance of a victim. However, victims may nevertheless receive great satisfaction in being more fully paid for their injuries, and ensuring that the perpetrator has been forced to pay for the harm the victim has had to suffer.

For more information on civil suits, see the California victims of crime handbook by Edwin Villmoare and Jeanne Benvenuti, or call 1-800-VICTIMS.

This SmartLaw message is from an article by Scott Harper in "Victims News and Notes," published by the Victims of Crime Resource Center, McGeorge School Of Law, University of the Pacific, Sacramento, California.

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